"Judge Jones hasn’t been confronted with whether this is good or bad idea, but whether (the law) is constitutionally permissible." - Randy Lee

UPDATE:The elected official tasked with defending state laws supports same-sex mar­riage, but now she faces a decision about whether to defend a law that bans it.

State Attorney General Kath­leen Kane, the first Democrat to be elected to that position, is scheduled to talk to reporters today at the National Consti­tution Center in Philadelphia. So far, she has been silent on the first known legal challenge seeking to overturn a 17-year-old law effectively banning same-sex marriage in Pennsylvania. But the Philadelphia Daily News reported Wednesday that she is expected to announce that her office won’t defend the state in the lawsuit.

Pennsylvania law says it is the attorney general’s duty to defend the consti­tutionality of state laws. But it also says the attorney general may allow lawyers for the governor’s office or executive branch agencies to defend a lawsuit if it is more efficient or in the state’s best interests.

That means Corbett could end up defending the law in Pennsylvania, where polls show the public is increasingly accepting of the concept of same-sex marriage. Corbett’s of­fice declined to comment Wednesday on whether he will defend the law.

U.S. Middle District Judge John Jones, who will preside over the case challenging the Pennsylvania Defense of Marriage Act, garnered international attention and landed on the cover of Time when he heard the intelligent design case in the Dover Area School District.

A Republican appointed by former President George W. Bush in 2002, Jones ruled in the Dover case that is was unconstitutional to teach intellectual design in science classes.

Jones is once again about to preside over a case that could garner national attention and wind up before the U.S. Supreme Court as he weighs Pennsylvania’s marriage statute against the U.S. Constitution.

Marla Cattermole, left, and Julie Lobur were married in 2009 in Iowa but enjoy none of the benefits of married life in Pennsylvania. They are among 23 plaintiffs suing the state and seeking to have its marriage laws overturned.Ivey DeJesus, pennlive

On Tuesday, the ACLU on behalf of 23 plaintiffs filed a federal lawsuit challenging the state’s ban on same-sex marriage and its refusal to recognize same-sex marriages performed in states where such unions are legal. The suit gained wide attention, with stories in The New York Times and The Washington Post, among many other outlets.

The suit, Whitewood v. Corbett, names Gov. Tom Corbett and Attorney General Kathleen Kane as defendants among several other heads of state and local agencies.

Jones will more than likely test the case against the 14th Amendment and its guarantee that states cannot deny its citizens equal protection or due process under the law.

“There are issues floating around here,” said Widener University constitutional law professor Randy Lee. “You hear in the discussions is this a good idea or is it a bad idea. Judge Jones hasn’t been confronted with whether this is good or bad idea, but whether what Pennsylvania has done is constitutionally permissible. As people look at the case and anticipate what they expect the judge to do, they have to understand that those two questions are not the same.”

Pennsylvania’s Defense of Marriage Act prohibits the issuing of marriage licenses to same-sex couples or the recognition of same-sex marriages performed in other states. Both Corbett and most of the Republican-controlled General Assembly oppose gay marriage.

To decide whether the 10 couples - and two teenage children of one of the couples - in the case have been denied their equal protection under the law, Jones will hold the arguments up to one of two tests: a rational basis or heightened scrutiny.

Rational basis, the standard courts use most often for federal equal protection analysis, always has the same two elements: a legitimate government interest and a rational relationship between the government's interest in passing the law and the law itself.

The government almost always wins under rational basis, Lee said.

“Normally, the courts apply this with great deference to the government, but sometimes, in cases like the Supreme Court case of Romer v. Evans, which involved gay rights, the courts ratchet up their scrutiny and apply this test with less deference to the government.”

U.S. Middle District Judge John JonesPennLive file photo

Jones could decide to hear the case under the heightened scrutiny test, which requires the government to show an important government interest that is substantially related to the law.

Courts rely on heightened scrutiny to evaluate equal protection for laws that treat men and women differently, Lee said. The standard gives the individual a much better chance of winning than does the traditional notion of rational basis both because the elements require more than do those of rational basis and because the courts apply heightened scrutiny with much less deference to the government.

In the context of Whitewood v. Corbett, Lee posed hypothetically, the state could argue - under traditional scrutiny - that it has studies showing that children who grow up in homes with a father and mother do better than children from gay/lesbian homes, and even though there might be studies available refuting that finding, the court could rule that the state has the right to rely on reliable studies.

Under heightened scrutiny, the court could force the state to convince it that its study was better than other studies.

“Normally under rational basis the government says this was in our interest and the court will accept that,” Lee said. “If you go into heightened scrutiny, the court will say we don’t necessarily believe that is why you did it. The court would look at it and say maybe that’s why the government passed the marriage law but maybe it passed it because it didn’t like gay people so we are going to look closer and in a more demanding way at what was going on here.”

Courts have seldom used heightened scrutiny to hear gay rights cases, and the Supreme Court never. But the standard is likely to be relevant in Pennsylvania’s case, Lee explained.

When the Obama Administration decided a couple years ago to stop defending DOMA in federal courts, it did so because it had decided that rational basis is not the appropriate equal protection test to apply when the law treats gay and lesbian individuals differently.

“The Obama Administration thought that sexual orientation was entitled to a more demanding test as well,” Lee said. “Thus, the Administration concluded that gay and lesbian individuals should be protected under heightened scrutiny rather than rational basis. The administration then concluded that under heightened scrutiny, DOMA could not survive.”

A third standard - strict scrutiny, used largely in racial cases - is not likely to figure in this case.

“It’s a bait that the court has not bitten on up to now so I don’t see them biting on it,” Lee said.

The court, hearing Whitewood under strict scrutiny, would consider whether the state is denying gays and lesbians a fundamental right that it affords to others. But then the argument could be made that historically marriage has been between a man and a woman and has been viewed as a fundamental right.

“It’s getting the cart before horse...it’s kind of backwards,” Lee said. “Courts haven’t gone that direction. I think what you are going to see is a class discussion. Are they entitled to heightened scrutiny? If not let’s go to rational scrutiny. I think this is where it’s going to shake out.”

Featured Story

Get 'Today's Front Page' in your inbox

This newsletter is sent every morning at 6 a.m. and includes the morning's top stories, a full list of obituaries, links to comics and puzzles and the most recent news, sports and entertainment headlines.

optionalCheck here if you do not want to receive additional email offers and information.See our privacy policy

Thank you for signing up for 'Today's Front Page'

To view and subscribe to any of our other newsletters, please click here.